Toscano v. Lewis et al

Filing 326

ORDER Re 323 by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 1/18/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BENJAMIN K. TOSCANO,
Plaintiff,

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Case No. 12-cv-05893-EMC
ORDER

v.

Docket No. 323
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Defendants.

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For the Northern District of California

United States District Court

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G. D. LEWIS, et al.,

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Plaintiff has filed a motion for an injunction compelling prison officials to return or replace

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his property. Docket No. 323. He states that on December 30, 2016, two non-defendant

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correctional officials “broke [his] TV and confiscated it along with other property items” and his

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legal documents for this case. Id. at 1. Plaintiff asserts that Defendants and defense counsel

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“ordered PBSP officials to confiscate [his] legal documents . . . as retaliation and so [he] will not

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be prepared for trial.” Id. Plaintiff does not explain the basis for his speculation that Defendants

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or defense counsel had anything to do with the incident.

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Plaintiff’s request for an injunction compelling the return of his television and other

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personal property by the non-defendants is DENIED. Docket No. 323. That requested relief is

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outside the scope of this action. As the Court earlier informed Plaintiff, the Court will not grant

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injunctive relief for matters outside the scope of this action. See Docket No. 265 at 2.

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Plaintiff’s request for the return of his legal property pertaining to the remaining claims in

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this action is DENIED as premature and incomplete. Docket No. 323. Absent unusual and

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compelling circumstances not shown to be present here, federal courts generally are discouraged

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from interfering with day-to-day prison administration decisions. See Turner v. Safley, 482 U.S.

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78, 84-85 (1987). Plaintiff filed his motion just four days after his legal materials allegedly were

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confiscated. Before he seeks intervention in prison operations, Plaintiff needs to use the prison

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administrative appeals process to try to obtain the return of the legal materials. If the materials

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have not yet been returned to him, Plaintiff should pursue diligently a prison administrative appeal

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to seek the return of that legal property and seek Court intervention only if that fails. Further,

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Plaintiff needs to provide some evidence, rather than just unsubstantiated speculation, that

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Defendants and defense counsel ordered the confiscation to retaliate and thwart his efforts in this

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action, if he seeks court intervention on that basis. Because it may take time for his inmate appeal

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to be processed, and to avoid consuming judicial resource with another premature motion, Plaintiff

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may not file a new motion until thirty days after the date this order is filed. The Court recognizes

promptly. If Plaintiff files a new motion, he must include with it a copy of his inmate appeal and

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For the Northern District of California

Plaintiff has a trial date in this matter and expects prison authorities will act on his appeals

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United States District Court

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any response(s) thereto.

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Although Defendants earlier filed a waiver of reply, as allowed by 42 U.S.C. § 1997e(g),

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an answer will now be required due to the fact that this case has been set for trial. Within thirty

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(30) days of the date of this order, the two remaining Defendants must file an answer, responding

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to the allegations against them in the first amended complaint (Docket No. 20) and asserting any

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affirmative defenses they have. See Fed. R. Civ. P. 8(b), (c).

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IT IS SO ORDERED.

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Dated: January 18, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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